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State v. Oppido4/20/2004
s case, appellant contends that he was sentenced to ten days' jail according to subsection (E) while the state contends that he was sentenced to thirty days' jail under subsection (D) with twenty days of the sentence suspended under subsection (E). The state's interpretation is correct. "[T]he sentence" referred to in subsection (E) is the thirty-day sentence required by subsection (D). A person cannot be sentenced to ten days' jail under the statute; he may only be sentenced to thirty days' jail under subsection (D) and then have twenty days of that **182 *468 sentence suspended pursuant to subsection (E) if he completes a treatment program.
8 The remaining portion of subsection (E) makes this even more clear. It states that "[i]f the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served." A.R.S. § 28- 1382(E) (emphasis added). The sentence given is for thirty days, not for ten days as appellant urges.
9 In sum, for a person sentenced pursuant to A.R.S. § 28-1382(D) the judge may suspend all but ten days of that sentence pursuant to A.R.S. § 28- 1382(E). However, any suspension of sentence made according to subsection (E) does not change the fact that the person was sentenced under subsection (D). Thus, a suspension of sentence under subsection (E) does not remove the person from the eligibility requirements of A.R.S. § 9-499.07(N)(3), which expressly pertain to subsection (D).
10 Because appellant was sentenced pursuant to A.R.S. § 28-1382(D), he was not eligible for home detention until he first served a minimum of fifteen consecutive days in jail as provided in A.R.S. § 9-499.07(N)(3). The city court's sentence, allowing for home detention after two days' jail, was accordingly in error. The superior court was correct in so declaring.
Page 1 2 Arizona DUI Attorneys
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